Szpunar v. State
| Decision Date | 27 February 2003 |
| Docket Number | No. 49A04-0202-CR-97.,49A04-0202-CR-97. |
| Citation | 783 N.E.2d 1213 |
| Parties | Casimir SZPUNAR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Dean L. Knapp, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Casimir Szpunar ("Szpunar") was convicted of sale of an unregistered security,1 a Class C felony, and sale by an unregistered broker-dealer,2 a Class C felony, in Marion Superior Court. He was sentenced to serve concurrent terms of four years with two years suspended for each Class C felony conviction, for a total of two years executed. The trial court then ordered him to serve the executed sentence in a community corrections program. He appeals and raises six issues, which we restate as:
I. Whether the trial court abused its discretion when it found that Szpunar's employment manual was inadmissible;
II. Whether Szpunar's Sixth Amendment right of confrontation was violated when a witness testified as to an absent third party's opinion;
III. Whether the State improperly amended the charging information by making certain statements in its closing argument;
IV. Whether the trial court abused its discretion when it allegedly tendered "conflicting and unclear" instructions to the jury;
V. Whether Indiana Code section 23-2-1-3 is unconstitutionally vague; and,
VI. Whether Szpunar's convictions constitute "post hoc rationalizations" by the State.
Finding that none of the alleged errors require reversal, we affirm.
Sometime in 1996, John and Paula Carithers ("Carithers") began consulting with Szpunar regarding certain investment opportunities in response to a radio advertisement they had heard. Tr. p. 29. Szpunar advised the Carithers and helped them invest in promissory notes and real estate. At some point, Szpunar gave the Carithers information about investing in pay telephones through Alpha Telecom. Szpunar informed the Carithers that it would cost them $5000 to invest in one pay telephone and the rate of return would likely be fourteen percent. Tr. pp. 30-31.
On April 10, 2000, Szpunar, as a representative for Alpha Telecom, executed a contract that provided that Alpha Telecom would sell one pay telephone to the Carithers for $5000.3 Under the contract, the Carithers were authorized to "operate and manage the pay telephones directly: collect revenues, pay expenses, answer inquiries and complaints, make repairs and perform cleaning and maintenance, etc." or to hire Alpha Telecom to perform such services. Ex. Vol., State's Ex. 1. If the Carithers elected to hire Alpha Telecom to perform those services, Alpha Telecom would receive seventy percent of the adjusted gross revenues generated from the pay telephone. On that same date, the Carithers executed a telephone services agreement with Alpha Telecom. Ex. Vol., State's Ex. 2. The Carithers received monthly checks from this investment for approximately one year, but stopped receiving checks in April or May of 2001 after Alpha Telecom filed for bankruptcy. Tr. pp. 33-34. Alpha Telecom has never applied for securities registration in Indiana, and Szpunar was not registered as a broker-dealer.
On June 7, 2001, the State charged Szpunar with sale of an unregistered security, a Class C felony, and sale by unregistered broker-dealer, a Class C felony. The charging information provided:
A jury trial was held on December 17 and 18, 2001, and the jury found Szpunar guilty as charged. The trial court sentenced Szpunar to serve concurrent terms of four years with two years suspended for each Class C felony conviction, for a total of two years executed. The trial court then ordered him to serve the executed sentence in a community corrections program. Szpunar appeals. Additional facts will be provided as necessary.
Szpunar argues that the trial court abused its discretion when it found that his employment manual, which he contends contained substantial exculpatory evidence, was inadmissible. "A trial court has discretionary power regarding the admission of evidence, and its decisions are reviewed only for an abuse of that discretion." Moore v. State, 771 N.E.2d 46, 56 (Ind.2002). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Prewitt v. State, 761 N.E.2d 862, 869 (Ind.Ct.App.2002).
On December 17, 2001, prior to opening statements, the trial court held a hearing on preliminary matters at which the State argued that Szpunar's employment manual was inadmissible because the manual contained opinions from two attorneys as to whether the telephone services agreement was a security. The trial court determined that the employment manual was inadmissible and the following exchange occurred:
Szpunar never attempted to introduce the manual into evidence and did not ask the court to revisit that ruling during trial; therefore, the State argues that he has waived this issue. In Winn v. State, 748 N.E.2d 352 (Ind.2001), our supreme court stated, "in order to preserve an error for appellate review, the excluded evidence must be offered at trial to give the trial court an opportunity to rule on its admissibility at that time." Id. at 359 (citing Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999)). We agree with the State that by failing to offer the employment manual as an exhibit at trial, Szpunar has waived this issue on appeal.4
At trial, the State called Paul Lawson, a deputy commissioner with the Securities Division of the Secretary of State's Office, to testify regarding securities, investment contracts, and registration requirements. During cross-examination, Szpunar questioned Lawson about an investigatory memorandum prepared by Betsy Ault, an investigator with the Securities Division, regarding Szpunar's payphone sales and whether the telephone services agreement at issue constituted an investment contract. The State never questioned Lawson, or any other witness, about the Ault investigation and memorandum.
Szpunar argues that his Sixth Amendment right to confrontation was violated when Lawson testified regarding the Ault investigation and memorandum because he was not effectively able to cross-examine Ault, as she was not called as a witness during trial. The State contends that Szpunar is precluded from asserting this alleged error on appeal because Szpunar was the party who elicited the testimony about which he now complains. "`A party may not invite error, then later argue that the error supports reversal, because error invited by the complaining party is not reversible error.'" Booher v. State, 773 N.E.2d 814, 822 (Ind.2002) (quoting Ellis v. State, 707 N.E.2d 797, 803 (Ind.1999) (quoting Kingery v. State, 659 N.E.2d 490, 494 (Ind.1995))). Because Szpunar was the party who elicited the testimony from Lawson regarding the Ault investigation, we agree with the State that this was invited error, and therefore it is not reversible error.
Szpunar next argues that when the prosecutor made certain statements during his closing argument, he effectively amended the charging information, which prejudiced Szpunar's substantial rights. During closing argument, the prosecutor told the jury that to convict Szpunar, the State was only required to prove that Szpunar sold an investment contract. Szpunar argues that when the prosecutor made that statement, the State "effectively eliminated the burden of proving Mr. Szpunar `knowingly' sold a `security.'" Br. of Appellant at 14 (emphasis in original).
The State argues that Szpunar waived this issue for appellate review when he failed to object during the State's closing argument. See Bald v. State, 766 N.E.2d 1170, 1172-73 (Ind.2002)
(). We agree that Szpunar waived this issue when he failed to object at trial.
Notwithstanding waiver, however, the State contends that the prosecutor's statement was consistent with the charging information because the term "security" is defined to include investment contracts. See Ind.Code § 23-2-1-1(k) (1989 & Supp. 2002). Furthermore, the trial court read the charging information to the jury and instructed them that the State was required to prove that Szpunar knowingly "did sell a security, which is: a telephone services agreement," which was not registered with the Securities Division of the Secretary of State's Office. Appellant's App. pp. 41-43, 45. Under these facts and circumstances, the State did not amend the charging information by making the statement at issue to the jury.
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